Williams v Doyle
[2002] QDC 349
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- Unreported Judgment
- Williams v Doyle[2002] QDC 349
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Williams v Doyle[2002] QDC 349
Williams v Doyle[2002] QDC 349
DISTRICT COURT OF QUEENSLAND
CITATION: | Williams v Doyle [2002] QDC 349 |
PARTIES: | BRETT JOHN WILLIAMS Appellant -v- PHILLIP OWEN DOYLE Respondent |
FILE NO/S: | 96 of 2002 |
DIVISION: |
|
PROCEEDING: | |
ORIGINATING COURT: | Magistrates Court at Bundaberg |
DELIVERED ON: | 11 November 2002 |
DELIVERED AT: | Bundaberg |
HEARING DATE: | 11 November 2002 |
JUDGE: | Skoien SJDC |
ORDER: | Appeal dismissed |
CATCHWORDS: | Amendment of particulars of offence charged; whether a new offence charged. |
COUNSEL: | P Wilson for the appellant P J Davis for the respondent |
SOLICITORS: | Brown, Solicitors for the appellant Garrahy & Associates for the respondent |
- [1]This is an appeal by Williams, the complainant in a Magistrates Court prosecution OF THE RESPONDENT before Mr Morton SM, for a breach of s.77 of the Fisheries Act 1994 (“the Act”).
Relevant Legislation
- [2]S.77 of the Act makes it an offence for a person unlawfully to contravene a closed waters declaration, and s.43(1) of the Act allows a fisheries agency to declare waters to be closed waters.
- [3]The Fisheries (East Coast Trawl) Management Plan 1999 (“the Plan”), by s.10, provides:—
- “10(1)For this section, all waters in the fishery are closed waters
- (2)The waters are closed every year, all year
- (3)The possession or use of a boat under a “T1”, “T2” or “T3” Fisheries Symbol is prohibited in the closed waters unless the conditions of the licence of the boat under Chapter 3 Part 5 have been complied with.”
- [4]Chapter 3, Part 5 of the Plan deals with requirements for VMS Equipment and Manual Reporting Conditions. VMS is a system of navigation and position fixing for boats.
- [5]Division 1 of Part 5 of Chapter 3 of the Plan imposes the obligations specified in Division 2. Division 2 comprises ss.57 and 58 which provide (relevantly) as follows:—
- “57(1)The holder of the licence must have an approved person install approved VMS equipment on the boat identified in the licence.
- (2)The equipment and the installer must be included in the particulars about the licence in the register of authorities the Authority keeps under s. 73 of the Act.
- (3)In this section “approved” means approved by the Authority.
“install”, approved VMS Equipment, includes Jit an approved seal on the equipment.
- 58(1)The person in control of the boat identified in the licence must ensure VMS Equipment installed on the boat is:
- (a)maintained in working condition (“maintenance obligation “); and
- (b)used at all times.”
The Prosecution
- [6]The respondent was charged that, on 1 November 2000, he unlawfully contravened a closed waters declaration, and alleged in support the following particulars:—
“Particulars
It is alleged that on the abovementioned dated you possessed a boat namely Lady Jocelyn under a Tl Fishery Symbol in the Hervey Bay region without approved VMS equipment installed on the boat in contravention of Divisions 1 and 2 of Part 5 of Chapter 3 of the Fisheries (East Coast Trawl) Management Plan 1999. The waters are closed by virtue of s.10 of Division 1 of Part 1 of Chapter II of the Fisheries (East Coast Trawl) Management Plan 1999.”
- [7]Those particulars could have related to a charge under s.57, above, but it was common ground that the respondent had complied with the requirements of that section. They could also have supported a charge under s.58 because, at the relevant date, the equipment had broken down and was being repaired. But the prosecution did not seek to pursue that course, probably because of the provisions of Division 3 of Part 5 of Chapter 3 of the Plan which deal specifically with the circumstances applicable to this case.
- [8]Division 3 contains ss.59 and 63, which are:—
- “59.This division:
- (a)applies if VMS equipment installed on the boat identified in the licence malfunctions; and:
- (b)imposes obligations on the person in control of the boat when the person becomes aware of the malfunction.
- 63(1)The person, in control may do the following only if the person complies with this section—
...
- (a)use fishing apparatus from the boat;
- (b)move the boat.
- (2)The person, must notify the boat's position and operation to the Authority by radio, telephone or another form of instantaneous electronic communication, at intervals that, in all the circumstances, reasonably acts as a substitute for VMS equipment..
- (3)The obligation, under subsection (2) is called the ‘manual reporting obligation’.”
- [9]At the beginning of the hearing before the learned Magistrate, an application was made to amend the complaint by amending the particulars as follows:—
“Particulars
It is alleged that on the abovementioned dated you possessed a boat namely Lady Jocelyn under a Tl Fishery Symbol in the Hervey Bay region without approved VMS equipment installed on the boat and failed to manually report in contravention of Divisions 1 and 2 of Part 5 of Chapter 3 of the Fisheries (East Coast Trawl) Management Plan 1999. The waters are closed by virtue of s.10 of Division 1 of Part 1 of Chapter II of the Fisheries (East Coast Trawl) Management Plan 1999.”
- [10]I adopt the précis of Mr Davis of counsel that, whereas the original particulars alleged a breach of the closed waters declaration by:—
- (a)failure to install or register VMS Equipment contrary to s.57 of the Plan; or
- (b)failure to maintain and use VMS Equipment contrary to s.58 of the Plan.
- The amended particulars alleged a breach of the closed waters declaration by failure to manually report the position of the boat once the malfunction of the VMS was known.
- [11]His Worship declined to allow the amendment. Finally, he dismissed the complaint stating shortly that the evidence did not support the charge as originally particularised.
- [12]This is an appeal by way of rehearing (Justices Act 1886, s.223) and s.225 gives me jurisdiction to exercise any power which the learned Magistrate might have exercised.
- [13]In my view, the requested amendment of the particulars would have introduced a completely new charge against the respondent, one which was out of time (Justices Act, s.52). It was not essentially the same charge (Hayes v Wilson, Ex parte Hayes (1984) 2 Qd R 114 at 127), nor one cognate to the offence originally charged (Fox v Chia; Ex parte Fox (1978) Qd R 88 at 90). The revised particulars were not merely explanatory of the offence, they completely altered its nature.
- [14]The case which an accused person must meet is the act or omission alleged to be the offence as defined both by the charge and any particulars (see R v Lewis (1994) 1 Qd R 613 at 623 et seq). It was submitted by Mr Wilson for the respondent that the charge was contravention of a closed waters declaration and the particulars originally supplied (and the particulars sought to be substituted) were no more than that, particulars of the actual contravention.
- [15]With respect, that rather misses the point. It is an offence to contravene a closed waters declaration (s.77). But there are a number of quite different ways of contravening it. The obligation under s.57(1) is different from that under s.57(2), and different from s.58(1)(a) which is itself different from s.58(1)(b). Each of those is quite different from the obligation under s.62 and each of them is different from the two obligations under s.63(1) and the obligation under s.63(2). All of these obligations arise because they are conditions of licence imposed by Chapter 3 of Part 5. A person charged with a contravention of a closed waters declaration under s.77 has the right to know, by particulars, which of those different obligations he is said to have breached.
- [16]Thus, His Worship was correct in declining to allow the amendment, correct in finding that the charge as originally particularised was not made out and correct in dismissing the complaint.
- [17]I dismiss the appeal. I order the appellant to pay the respondent's costs fixed at $1,800.00.